Forever Fencing, Inc. has filed a federal lawsuit against the Leavenworth County Commission, Commissioner Doug Smith individually, and Commission Attorney David Van Parys, charging discrimination and violations of their rights under the Commerce Clause, The Civil Rights Act of 1871, and the 14th Amendment to the U.S. Constitution.
Raymond and Lisa Reynolds, dba Forever Fencing at their home in Tonganoxie, are being required to pay $68,868 to receive a Special Use Permit (SUP) from the county. The cost of the SUP is normally based on a Traffic Impact Study, Road Assessment, and Drainage Structure Assessment conducted by a county engineer to measure the impact and costs of passenger and commercial vehicles traveling to and from a business. The couple argues, however, the SUP should not apply to them because customers do not come to their business; all the company’s fencing installation is done on-site, with materials kept on their property.
The cost assessed by the county allegedly stems from uncompleted work on a County Road 30 project for which Forever Fencing contracted with the county in late 2007. Reynolds says the economic downturn caused by the housing crisis prevented his company from fulfilling the contract. Emails offered as evidence in the suit by the county show Reynolds was paid $29,000 in December of 2007, but the county incurred $39,868 in costs to finish the project in the summer of 2009, including some work completed by the company that the county claimed had to “redone and rebuilt”.
Following the 2008 non-completion issue, the Complaint states Forever Fencing operated without zoning issues until August 2018 when the business was notified a SUP was required. In September of 2021, after the Plaintiffs were cited in district court with a zoning code violation, they applied for a SUP as directed. In November of that year, the LVCO Planning Commission endorsed their SUP and recommended approval by the County Commission. The Complaint states:
“At no time during the Planning Commission application or hearing process was the subject of Petitioners’ previous contracted work for, or alleged liabilities to, the County raised by Van Parys or any other person.”
On November 29th of that year, the Complaint reads that Van Parys sent a memorandum to the County Commission recommending denial of the SUP application due to the business’s failure to complete the 2008 project. At a December hearing, Commissioners discussed requiring Forever Fencing to reimburse the county for the amount paid to the business for the unfinished 2008 project and directed Van Parys and the Plaintiffs’ counsel at the time to negotiate an amount to be paid in order to approve the SUP. Commissioner Smith allegedly recommended full restitution with interest. Towards the conclusion of the meeting, the Complaint alleges Van Parys said he stood by the $68,868 figure as repayment.
Later in December of that year, the County Commission denied the SUP for the business on a 3-2 vote, and the county has continued to enforce zoning regulations as long as the fee remains unpaid.
The Complaint outlines the Reynolds’ allegations against Leavenworth County:
- Commissioner Smith and Defendant Van Parys, acting in concert with each other and any other co-conspirators known and unknown, reached an agreement among themselves to impose the illegal fee on the Plaintiffs and thereby deprive them of their constitutional rights of equal protection, due process, and rights under the Commerce Clause.
- To the extent that the $68,868 special use permit is viewed as a tax because it was not directed to Planning and Zoning but was instead an attempt to raise general revenue from the Plaintiffs, it also violates the Commerce Clause.
- Additionally, the $68,868 special use permit violates the Equal Protection Clause of the Fourteenth Amendment because it is only applied to the Plaintiffs.
The couple has requested the Court award them “compensatory and punitive damages in an amount in excess of $75,000,” as well as “reasonable costs and attorney’s fees,” and is demanding a jury trial.
We reached out to both parties in the suit for comment. Commissioner Smith, and outside counsel Andrew Holder, representing the County Commission, declined comment. Attorney Van Parys did not respond to our request.
Attorney Ryan Kriegshauser represents the Plaintiffs:
“We believe this case represents the worst aspects of local government. As you can see from our Petition, we allege that Commissioner Doug Smith and County Counselor David Van Parys conspired to destroy a longstanding Leavenworth business based on personal vendettas arising from over a decade ago. As can be seen from recent news reports, this is not the first Leavenworth County business targeted by disparate and arbitrary Leavenworth County policies that can be wielded as weapons by county officials. The unequal treatment of certain businesses by Leavenworth County must be stopped.”